On July 06, 2021, the National Civil Aviation Agency (“ANAC”), through the Superintendence of Operational Standards (“SPO”), promoted a Participative Meeting in its official channel, with the objective of evaluating the regulatory framework of aero-agricultural operations brought about in particular by the Brazilian Civil Aviation Regulation (“RBAC”) No. 137 (“RBAC 137”), entitled “Certification and Operational Requirements: Aero-Agricultural Operations” and to identify possible points for simplification. The event presented the preliminary version of the regulatory impact analysis to the proposed changes to RBAC 137 that discusses the problems, international best practices, and alternatives to solve the challenges raised.
The main motivation for the proposed change was due to the perception that RBAC 137 imposed too high operational costs to the aero-agricultural operator, which were not necessarily being reversed in favor of greater safety to the air operation. It was also observed the need to review the exercise of ANAC’s police power in the inspection of the regulated, in order to adapt to the global trend of promoting alternative and complementary measures. Furthermore, the regularization of pirate aero-agricultural operators was also discussed.
The preliminary regulatory impact analysis pointed out as the main problems to be solved:
a) Market failures, being information asymmetry and externality;
b) Disproportionate regulatory requirements, such as unreasonable prescriptions;
c) Clandestine commercial operations that could be discouraged by creating favorable conditions for non-commercial operators to become commercial;
d) Complexity of the authorization process for commercial operators, which can be solved by simplifying it, especially in the items of motivation for granting and certification and analysis of the differences between commercial and non-commercial operators;
e) Low effectiveness of operations monitoring, seeking to increase this effectiveness through the reallocation of internal resources and intelligent data analysis; and
f) Need to encourage a culture of operational safety, which can be promoted through closer communication and partnerships between ANAC and representative entities to raise awareness of safe operations.
In view of the points of attention presented in the regulatory impact analysis, ANAC presented the following proposals for amending RBAC 137:
a) Replace the Operational Safety Management Manual by a Recommended Good Practice Guide directly linked to the airline operator, giving more responsibility to the Responsible Manager and the Operator itself regarding the implementation of good practices, in addition to increasing the Pilot’s responsibility, as the person directly responsible for flight safety;
b) To change the structure required for the Aero Agricultural Operator, now requiring only an address linked to the National Register of Legal Entities of the Ministry of Economy – “CNPJ/ME” and the indication of the Responsible Manager. With this amendment it is no longer mandatory to indicate an administrative and operational headquarters, an Operational Safety Manager and the Chief Pilot (only the Responsible Manager will be maintained). The operator will therefore evaluate the need for his team. For commercial operators no operational structure will continue to be required;
c) Modify the Commercial Operator Certification, being necessary only the existence of CNPJ/ME as well as the indication of the basic data of the company, the aircraft and a Responsible Manager. This registration would go through a quick evaluation by ANAC for later issuance of the Certification and Authorization. Thus, the five-phase certification process and all its unfoldings and requirements would cease to exist;
d) Migrate to a system, essentially, of data collection with respect to the inspection of operations with the creation of a digital platform for data sharing; and
e) To promote the awareness of operational safety through the availability of a website dedicated to the sector, guidance guides, audiovisual projects, lectures and webinars, partnerships for awareness campaigns and the creation of incentive programs.
After presenting the challenges and proposals collected by the preliminary analysis, ANAC has enough material and content for the preparation of Amendment No. 5 to RBAC 137, in addition to the preparation of Supplemental Instructions that may be necessary and, therefore, intends to open public consultation for the analysis of this Amendment from the second half of 2021.
In the light of all this, it is possible to notice that the wave of debureaucratization of the regulatory processes that has been promoted by ANAC in the most diverse areas is still evident and promises to simplify and optimize the aero-agricultural operation in the country.
The Aviation Law team at De Luca, Derenusson, Schuttoff & Advogados will continue to monitor the issue and keep its partners and collaborators updated.